mapping the boundaries of government secrecy in Canada

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The New Brunswick government’s records access law recommendations will do little to help information seekers in that province. (Graphic by Province of New Brunswick)

COST BENEFIT? New Brunswick may soon demonstrate how little excuse Canada’s governments need to take away our information rights — especially when compared with how much is needed for those rights to be upheld.

Right now, the province is the only place in the country where access requests are free, having eliminated them in 2011.

But a recent government review of its Right to Information and Protection of Privacy Act, stated public bodies had asked for the “re-instatement of a fee regime, not for full-cost recovery, but as a way to share some of the cost between themselves and the applicant.”

In response, the government recommended the request be evaluated, even though the reports acknowledges the province continues to have “the lowest number of RTI requests per capita.”

Indeed, in 2013-14, government departments received just 581 requests at an estimated cost of $680,000 or an average of $1,170 per request.

That means, even if the province introduced a $25 filing fee — matching Alberta, the Northwest Territories and Nunavut for the highest amount in Canada — that watchdog tax would only bring in $14,525 for those departments.

And if it introduced separate processing fees to help cover the cost of locating, reviewing and copying records, many journalists, activists and their employers couldn’t or wouldn’t pay them.

But none of that, including arguments from reporters that “imposing fees is undemocratic,” seems to have swayed the New Brunswick government.

Nor did the government seem worried about the involvement of communications officers in processing access requests, the amount of censorship allowed by its right to information law and the commissioner’s inability to review claims of solicitor-client privilege in preventing the release of records — all complaints mentioned in its review that aren’t planned on being addressed.

Indeed, taken as a whole, the review’s recommendations would likely do little to help that right and much more to harm it, despite a 2012 report from the Centre for Law and Democracy rating New Brunswick’s access legislation as already being among the worst in the country.

Yet what more can we expect in a country where almost every other government has delayed fixing their own broken freedom of information laws while exploiting that disrepair for their own benefit?

YOU CAN’T FIGHT CITY HALL If New Brunswick does re-instate a watchdog tax, its municipalities will be partially to blame.

The province’s cities, towns and villages have long had a conflictual relationship with its right to information law.

The government made them subject to that law just three years ago — something they tried to delay.

The reason for that attempted delay: concerns about the cost of requests, as well as the amount of staffing and training required to respond to them.

Those concerns continued even after that effort failed.

There were reports some municipalities would need to hire expensive lawyers to cope with the province’s records access law.

Local politicians also worried their constituents might be afraid to come to them with their complaints if a request might disclose their identity.

And those same politicians had their own complaints about the price tag of this new transparency.

In 2013, the Daily Gleaner paraphrased a Fredericton councillor as saying the city spent more than $100,000 in staff time responding to access requests over the past year, with one taking over 100 hours to process.

Then, two years later, the same newspaper reported a request filed with New Maryland required the reading of 2,000 pages of information and consultation with the village’s law firm.

“If this went on on a monthly basis it would drain us,” Mayor Judy Wilson-Shee told the Daily Gleaner. “It’s very time consuming and we are not compensated in any way.”

Such financial complaints resulted in local government association resolutions asking for a right to information cost-recovery system — something the province is now considering.

Yet, according to the government, New Brunswick’s three largest cities dealt with just 227 filings in the two years after Sept. 2012, with all but one other community having gotten less than a dozen over that same period.

THE MOST UNWANTED RIGHT IN ALBERTA? That’s the title of the speech I’ll be giving in Calgary and Edmonton at Right to Know Week forums being organized by the Alberta’s information commissioner Jill Clayton. Those forums will take place on Sept. 29 and Oct. 1 respectively, providing an opportunity to celebrate the 20th anniversary of the province’s freedom of information legislation. So if you’re in either city on those dates, I’d love to see you there.

SQUIBS (FEDERAL)

• Writing in Maclean’s magazine, former Power & Politics host Evan Solomon opines that “Hillary Clinton’s use of her personal email for state work could well derail her campaign.” But in Canada, where public officials routinely use similar tactics to hide their communications from freedom of informations requests, “it’s still the dirty secret of government.” (hat tip: Dale Bass)

• “Prime Minister Stephen Harper’s government has made more than two dozen secret cabinet decisions, hiding any trace of them from Parliament and Canadians,” reports iPolitics.

• Maclean’s magazine filed an access request for “how many Syrian and Iraqi refugees have arrived in Canada since January, how many are privately sponsored, and how many came with government assistance.” But that request was denied because it concerned “material available for purchase by the public.” The magazine was also informed the cost of producing a customized report from Citizenship and Immigration Canada’s database would be “$100 for the first 10 minutes or less of access…plus $30 for each additional minute or less of access. (hat tip: Ian Bron)

• The Province reports a protracted federal access request for records about the strangling death of Jeremy Michael Phillips by his cellmate at the Mountain Institution in Agassiz in 2010 “provided little access and not much information.”

• The Canadian Press reports, “The federal department in charge of the monthly universal child care benefit is refusing to say how many families who had yet to sign up for the benefit opted to do so after a nationwide push earlier this year.” According to the wire service, “The decision to not release the numbers appears to be linked to a practice during election campaigns where federal departments decline to put out information lest they be considered to be acting in for or against the electoral interests of any party.”

• A promised federal government database on missing indigenous women is late and the costs for it have doubled, according to CBC News. (hat tip: Ian Bron)

• In a column opining on the importance of democratic values — and the fact a “couple of key ones are mostly talk” in Canada — The Ottawa Citizen’s Shannon Gormley writes, “There’s a distant but distinct possibility, as I’ve argued before, that media outlets unfairly excluded from asking questions could theoretically start a charter challenge to protect the public’s right to know.”

• Embassy News managing editor Carl Meyer tweets that he filed an access request for any reports related to “technical and operational assistance” provided by the Communications Security Establishment Canada to “law enforcement and security agencies.” But the intelligence service has denied that request in its entirety because the disclosure of those reports would be harmful to the country’s national defence.

• The Toronto Star’s Alex Boutilier tweets that Canada’s top bureaucrat and cabinet secretaries met on Jan. 21 but “you can’t know a single thing about it.”

• CBC News’s Dean Beeby tweets that the federal government has blacked out the results of 17 polls on oil that were requested under the Access to Information Act.

• Beeby also tweets that a seven-page Q&A document prepared for Finance Minister Joe Oliver on voluntary contributions to the Canada Pension Plan was also blacked out.

SQUIBS (PROVINCIAL)

• The Daily Gleaner editorializes against increasing fees for information requests in New Brunswick, writing that “all levels of government should focus on the process itself. For starters, how they can make it more efficient. Whether it’s checking out groceries or paying bills at a terminal instead of through a person, people are being asked more and more to do some tasks themselves. Governments need to find out how much of the information people want can be placed online and have them find it.”

• The Daily Gleaner isn’t alone in its opposition to increasing information request fees. CBC News reports the province’s information commissioner has questioned the logic of that proposal, along with a recommendation to give bureaucrats the power to disregard frivolous or vexatious request.

• Former Times & Transcript editorial page editor Norbert Cunningham advances his own recommendations for freedom of information reform in New Brunswick. Among them: have government explicitly acknowledge one of the fundamental tenants of democracy theory — “with few exceptions, the public has a right to know what its government is doing on its behalf. Create and practice a culture of openness among politicians and bureaucracy. This must be the default approach. Compared to the United States, Canada has a political and bureaucratic culture of secrecy, often the default position for no good reason.”

• “The co-founder of a national anti-bullying charity says he’s disappointed with the response he’s received to an information request filed in relation to the work of a [New Brunswick] ministerial committee he was supposed to be part of,” reports the Bugle-Observer. “After five months of waiting, Rob Frenette of Bullying Canada said he received a response to a Right to Information request he made on April 20, seeking notes, emails, memos, briefing notes, letters and reports related to the work of the Ministerial Advisory Committee on Positive Learning and Working Environments.” But “most documents drafted by the committee were withheld, as they fell under the umbrella of opinions, advice, proposals, and recommendations developed for the department or the minister.”

• The Centre for Law and Democracy has called the Quebec’s government proposed records access reforms “only a start.” As a result, it has prepared a submission outlining the “further changes it believes are necessary to bring [the province’s] right to information law more fully into line with international standards in this area.”

• Former British Columbia attorney general Geoff Plant, who introduced the province’s first lobbying legislation in 2001, writes in the Globe and Mail that the law is “increasingly being undermined by a misdirected focus on trivial violations of filing requirements.” (hat tip: Ian Bron)

• The Federal Court has ruled against the Peace Valley Landowner Association’s request for a judicial review of the government’s approval of the Site C dam in British Columbia. The Alaska Highway News reports the court found that decision was “justified — even though the government chose not to reveal its reasoning behind the decision to the courts.”

SQUIBS (LOCAL)

• “The Ottawa Police Service is going to great lengths to keep secret a publicly funded consultants’ report into a controversial officer transfer policy that the force scrapped months ago after backlash from its own officers,” reports the Ottawa Citizen.

• The Macleod Gazette reports a Fort Macleod, Alta man will “have to file an official request to find out how much the Town of Fort Macleod paid its former chief administrative officer when David Connauton was fired.”

• The Toronto Community Housing Corporation has “opted to meet in privacy Thursday for their first meeting since the end of July,” reports the Toronto Sun’s Sue-Ann Levy. That decision was made despite an interim report from the Mayor’s Task Force on Community Housing that recommended the corporation’s staff need to be “respectful and courteous” to tenants, as well as listen to and communicate with them.

• Prince George, B.C.’s city council will be discussing “implementing a new process to release information from incamera [sic] sessions.” According to the northern community’s daily newspaper, “One method would be to have staff develop a policy like Vancouver or Nanaimo, who have developed policies around proactively releasing info online on a quarterly or semi-annual basis. Council could use another method where individual staff reports would identify what information in said reports was subject to closed meeting criteria and how or if it could be released. Or the city could keep the status quo, with releasing information on a case-by-case basis.”

• The Prince George Citizen’s Neil Godbout writes that the city’s councillors are “taking some encouraging steps towards increased transparency.” But Godbout also writes that demands for “unrestricted access to what is being shared at in-camera to what is being shared at in-camera meetings held by government and public sector officials” are “often unrealistic and unfair.”

Have a news tip about about the state of democracy, openness and accountability in Canada? You can email me at this address.

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ABOUT THE AUTHOR

Sean Holman is an associate professor of journalism at Mount Royal University in Calgary and a freedom of information researcher. A former investigative journalist covering British Columbia politics, Holman is now pursuing a doctorate at the University of Birmingham where he is writing a dissertation on the history of the federal government’s Access to Information Act. READ MORE

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